lumbosacral Understanding This Cue Claim

[foreveryoung]

I was reviewing the below Decision for CUE and would like to know if anyone else has come across the use of 38 CFR 3.1 (m) and how it may apply to preexisting conditions?

I believe this may apply to my claim for CUE. I can read this decision, but it is not sinking in for me to fully understand. Any help would be great.

THANKS

Citation Nr: 0519395

Decision Date: 07/18/05 Archive Date: 07/22/05

DOCKET NO. 03-00 527 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in Detroit,

Michigan

THE ISSUE

Whether an April 1970 rating decision was clearly and

unmistakably erroneous (CUE) in failing to award service

connection for epiphysis dysplasia tarda and a back condition

to include spondylolisthesis.

REPRESENTATION

Veteran represented by: Paralyzed Veterans of America,

Inc.

WITNESS AT HEARING ON APPEAL

The veteran

ATTORNEY FOR THE BOARD

D. Hachey, Associate Counsel

INTRODUCTION

The veteran served on active duty from December 1968 to

September 1969.

This case comes before the Board of Veterans' Appeals (the

Board) on appeal from rating decisions of the Department of

Veterans Affairs (VA) Regional Office in Detroit, Michigan

(the RO).

This matter has been certified to the Board for review of a

December 2001 rating decision, which found that the veteran

had not submitted new and material evidence to warrant the

reopening of a claim of service connection for epiphysis

dysplasia tarda and a back condition to include

spondylolisthesis. However, applicable law provides that

certification is for administrative purposes and does not

serve to either confer or deprive the Board of jurisdiction

of an issue. 38 C.F.R. § 19.35.

Upon review of the claims folder, the Board has

recharacterized the issue before it as reflected on the title

page of this decision. The record indicates that in

September 1969, the RO received the veteran's claim of

service connection for epiphysis dysplasia tarda;

osteoarthritis of the hips, knees, and ankles; and a low back

disability to include spondylolisthesis of the lumbosacral

spine. An April 1970 rating decision denied the claims,

finding that these disabilities existed prior to service and

were not aggravated therein. The veteran did not appeal this

decision to the Board.

In June 1990, the veteran requested that his claims be

reopened. In a rating decision issued later that month, the

RO declined to reopen the claims on the basis that new and

material evidence had not been submitted. The veteran

subsequently appealed his claims to the Board, which, in a

September 1992 decision declined to reopen the claims on

grounds similar to those outlined by the RO.

Following the Board's decision, the veteran appealed to the

United States Court of Appeals for Veterans Claims (the

Court), which remanded the case in October 1993 based on a

Joint Motion for Remand which argued that new and material

evidence had been received thus warranting adjudication of

the claims on the merits.

Following the Court's remand, the veteran submitted a new

claim asserting that the April 1970 rating decision that

denied service connection for osteoarthritis of the hips,

knees, and ankles; epiphysis dysplasia tarda; and a low back

disability to include spondylolisthesis of the lumbosacral

spine was the product of CUE. Specifically, the veteran

argued that because a July 1969 Army Medical Board report

determined that these conditions were aggravated in the line

of duty, such determination was binding on VA by virtue of

38 C.F.R. § 3.1(m). The RO denied the veteran's CUE claim in

an August 1995 decision, and he duly perfected an appeal of

this decision.

In a December 1997 decision, the Board awarded service

connection for "osteoarthritis of the hips, knees, and

ankles," specifically concluding that under the provisions

of 38 C.F.R. § 3.1(m), VA was bound by the Medical Board's

determination that these disabilities were aggravated in the

line of duty. See 38 C.F.R. § 3.1(m) ["In line of duty"

means an injury or disease incurred or aggravated during a

period of active military, naval, or air service unless such

injury or disease was the result of the veteran's own willful

misconduct or, for claims filed after October 31, 1990, was a

result of his or her abuse of alcohol or drugs. A service

department finding that injury, disease or death occurred in

line of duty will be binding on the Department of Veterans

Affairs unless it is patently inconsistent with the

requirements of laws administered by the Department of

Veterans Affairs.] Thus, the Board concluded that the RO's

failure to properly apply 38 C.F.R. § 3.1(m) in the April

1970 rating decision amounted to CUE. Given the favorable

outcome of the CUE claim, the Board determined that the

direct service connection claim for osteoarthritis of the

hips, knees, and ankles was essentially moot.

The December 1997 Board decision did not, however, address

the issue of CUE in the April 1970 rating decision as it

pertains to the issues of service connection for epiphysis

dysplasia tarda and a back disability to include

spondylolisthesis. These issues were clearly on appeal at

the time of the December 1997 Board decision, yet were not

adjudicated by that decision. See e.g. September 1995 notice

of disagreement [referring to a "back" disability].

Because these issues were not addressed by the Board's

December 1997 decision, they are still on appeal and will be

adjudicated by the Board below.

Given the favorable decision with regard to the veteran's CUE

claim, the issue of whether new and material evidence has

been submitted to reopen the veteran's service connection

claim for familial multiple epiphysial dysplasia tarda with

spondylolisthesis of the lumbar spine has been essentially

rendered moot.

The veteran presented testimony before the undersigned

Veterans Law Judge (VLJ) with regard to the issue as

certified on appeal via a videoconference hearing in March

2005. A transcript of this hearing has been associated with

the veteran's VA claims folder. While the veteran also

presented testimony with regard to his CUE claim before a

different VLJ in June 1997, given the grant of the CUE claim

in this decision, the veteran would not be prejudiced by the

case being adjudicated by the undersigned.

FINDINGS OF FACT

1. A July 1969 Army Medical Board report found that the

veteran's epiphysis dysplasia tarda and back disability (to

include spondylolisthesis) preexisted service and were not

aggravated therein.

2. A December 1997 Board decision found that the

determinations made by the Army Medical Board were binding on

VA by virtue of 38 C.F.R. § 3.1(m).

CONCLUSION OF LAW

The April 1970 rating decision was clearly and unmistakably

erroneous in failing to award the veteran service connection

for epiphysis dysplasia tarda and a back disorder to include

spondylolisthesis. 38 U.S.C.A. § 5109A (West 2002);

38 C.F.R. §§ 3.1 (m), 3.105 (2004); see also Chisem v. Gober,

10 Vet. App. 526 (1997).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Preliminary Matter: VA's Duty to Notify and Assist the

Claimant

The Board has given consideration to the provisions of the

Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.

106-475, 114 Stat. 2096 (2000). The VCAA is applicable to

all claims filed on or after the date of enactment, November

9, 2000, or filed before the date of enactment and not yet

final as of that date. The VCAA is accordingly generally

applicable to this case. See Holliday v. Principi, 14 Vet.

App. 280 (2000) [the Board must make a determination as to

the applicability of the various provisions of the VCAA to a

particular claim].

The thrust of the veteran's presentation is that the RO

committed CUE in connection with the April 1970 decision,

which denied service connection for epiphysis dysplasia tarda

and a back disability to include spondylolisthesis. Although

the VCAA is generally applicable to all claims filed on or

after the date of its enactment, it is not applicable to CUE

claims. In Livesay v. Principi, 15 Vet. App. 165 (Aug. 30,

2001) the Court held that "there is nothing in the text or

the legislative history of VCAA to indicate that VA's duties

to assist and notify are now, for the first time, applicable

to CUE motions." In concluding that the VCAA is not

applicable to allegations of CUE, the Court's opinion

explained that even though the VCAA is a reason to remand

"many, many claims, . . . it is not an excuse to remand all

claims."

In essence, the Court in Livesay continued to hold that the

VCAA is potentially applicable to all pending claims, as it

had held in Holliday. However, the Court further indicated

that CUE claims are not conventional appeals, but rather are

requests for revision of previous decisions. A claim of CUE

is not by itself a claim for benefits. Thus, CUE is

fundamentally different from any other kind of action in the

VA adjudicative process. A litigant alleging CUE is not

pursuing a claim for benefits, but rather is collaterally

attacking a final decision. Thus, a "claimant", as defined

by 38 U.S.C.A. § 5100, cannot encompass a person seeking a

revision of a final decision based upon CUE. As a

consequence, VA's duties to notify and assist contained in

the VCAA are not applicable to CUE motions. See also 38

C.F.R. § 20.1411© and (d) (2004).

The Board observes in this connection that in general a CUE

claim does not involve the submission of additional evidence

apart from what already resides in the claims folder. In

this case, as discussed below, the outcome rests on the

interpretation of evidence already contained in the claims

folder. Accordingly, based on the Court's precedential

decision in Livesay, the Board concludes that the veteran's

CUE claim is not subject to the provisions of the VCAA.

The Merits of the Appeal

As noted, the veteran has previously asserted that there was

CUE in the April 1970 rating decision which denied service

connection for epiphysis dysplasia tarda and a back

disability to include spondylolisthesis, and he has not

withdrawn this contention in the present appeal. He

essentially contends that the April 1970 decision contained

CUE by failing to follow the Army Medical Board's finding

that his preexisting epiphysis dysplasia tarda and back

disability were service aggravated. See 38 C.F.R. § 3.1(m).

The veteran did not appeal that decision, and it is thus

considered final, although it may be reversed if found to be

based upon clear and unmistakable error.

Legal authority provides that, where clear and unmistakable

error is found in a prior decision, the prior decision will

be reversed or revised, and, for the purposes of authorizing

benefits, the rating or other adjudicative decision which

constitutes a reversal or revision of the prior decision on

the grounds of clear and unmistakable error has the same

effect as if the decision had been made on the date of the

prior decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §

3.105(a) (2004).

Under law, clear and unmistakable is determined by three

criteria: (1) either the correct facts, as they were known at

the time, were not before the adjudicator (i.e., there must

be more than a simple disagreement as to how the facts were

weighed or evaluated) or the statutory or regulatory

provisions extant at the time were incorrectly applied; (2)

the error must be undebatable and of the sort which, had it

not been made, would have manifestly changed the outcome at

the time it was made; and (3) a determination that there was

clear and unmistakable error must be based on the record and

law that existed at the time of the prior adjudication in

question. Russell v. Principi, 3 Vet. App. 310 (1992).

It has been held that clear and unmistakable error is a very

specific and rare kind of 'error.' It is the kind of error,

of fact or of law, that when called to the attention of later

reviewers compels the conclusion, to which reasonable minds

could not differ, that the result would have been manifestly

different but for the error. Fugo v. Brown, 6 Vet. App. 40,

43-44 (1993).

The record indicates that a July 1969 Army Medical Board

report determined that the veteran's epiphysis dysplasia

tarda and spondylolisthesis preexisted service and were

aggravated therein. (Italics added). The Board subsequently

determined in its December 1997 decision (adjudicating the

claim of CUE in the April 1970 decision as it pertains to

osteoarthritis of the hips, knees, and ankles) that service

department line of duty determinations, such as those made in

the July 1969 Army Medical Board report, were binding upon VA

under the provisions of 38 C.F.R. § 3.1(m).

This determination by the Board is now the "law of the

case" as it pertains to the remaining aspects of the

veteran's CUE claim (regarding epiphysis dysplasia tarda and

spondylolisthesis). See Chisem v. Gober, 10 Vet. App. 526,

527-8 (1997) [under the "law of the case" doctrine,

appellate courts generally will not review or reconsider

issues that have already been decided in a previous appeal of

the same case, and therefore, the Board is not free to do

anything contrary to the prior Board decision with respect to

the same claim].

Accordingly, under the "law of the case" doctrine, the

Board finds that the Army Medical Board's determination that

the veteran's epiphysis dysplasia tarda and spondylolisthesis

preexisted service and were aggravated therein is binding on

VA and the Board under the provisions of 38 C.F.R. § 3.1(m).

Therefore, by failing to properly apply this regulation, the

RO committed clear and unmistakable error in the April 1970

rating decision. Service connection is therefore warranted

for epiphysis dysplasia tarda and a back disability to

include spondylolisthesis.

ORDER

Clear and unmistakable error having been found in the April

1970 rating decision denying service connection for epiphysis

dysplasia tarda and a back disability to include

spondylolisthesis, the appeal is granted.

____________________________________________

VITO A. CLEMENTI

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

[Berta]

This vet has claimed CUE under 38 CFR 3.1 regarding schizophrenia and has had her CUE remanded

http://www.va.gov/vetapp98/files3/9824107.txt

The point is the the VA cannot go against the MEB-as I see it-

(of course they will try too)